Harris v. Marion County

Under MCC 17.136.060(A)(2), it is unclear whether police services are “rural services” for purposes of approving a conditional use permit.

Petitioners appeal a county order approving a conditional use permit to establish a 12-acre photovoltaic solar power generation facility on property zoned exclusive farm use (EFU). The 15.15 acre subject property is zoned EFU and designated Primary Agriculture under the Marion County Comprehensive Plan (MCCP). Intervenor applied for a conditional use permit, which was approved by the hearings officer. That approval was appealed to the board of county commissioners, which adopted the hearings officer’s decision. This appeal followed.

Marion County Rural Zoning Code (MCC) 17.136.060(A)(2) applies to all conditional uses in the EFU zone and requires that adequate fire protection and other “rural services” be available when the use is established. In their fifth assignment of error, petitioners argue the county erred in approving the application because the hearings officer’s findings do not establish that adequate police services will be available when intervenor’s facility is established. Intervenor responds that MCC 17.136.060(A)(2) does not require such findings. Neither party nor the hearings officer provided a definition or interpretation of “rural services.” Although LUBA may interpret the code provision in the first instance, it is not prepared to say that police services are not “rural services” as a matter of law. LUBA therefore agrees with petitioner that remand is necessary for the hearings officer to explain whether MCC 17.136.060(A)(2) requires findings regarding police services and, if so, determine whether adequate police services will be available for the proposed facility. The fifth assignment of error is sustained, in part.

MCC 17.120.110(B)(2) requires that proposed photovoltaic solar power generation facilities will not create unnecessary negative impacts on agricultural operations conducted on any portion of the subject property not occupied by project components, including placing facility project components on lands in a manner that could disrupt common and accepted farming practices. In the eighth and ninth assignments of error, petitioners argue the county erred in approving the application because some portion of the subject property will inevitably remain outside the proposed 12-acre facility. Intervenor responds that the balance of the subject property does not contain agricultural operations and that the portion of the subject property outside the facility is comprised of nonfarmable land. Because the hearings officer did not make sufficient findings on this point, the eighth and ninth assignments of error are sustained and the county’s decision is REMANDED.